Novell Files New Summary Judgement Motion 60
rm69990 writes "In yet another piece of SCO news this week, Novell has filed a new motion for partial summary judgment, asking the court to declare that Novell is entitled to direct SCO to waive its claims against IBM, that Novell has the right to take these actions on SCO's behalf if SCO refuses to comply and that SCO is obligated to recognize Novell's waiver. Since SCO's case against IBM is primarily a contract case, this issue affects the IBM case far more than the ongoing copyright issue between Novell and SCO. This bad week for SCO just got even worse."
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It's a nice gesture... (Score:3, Insightful)
You'd think that Novell could have filed this lawsuit a year or three ago instead of waiting till right before SCO vs IBM goes to trial (in a few months).
Why try to kill the lawsuit at this point?
It's already imploding under the weight of SCO's garbage.
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Re:It's a nice gesture... (Score:5, Informative)
They'll be in court for a while yet anyway. The sooner the SCO-vs-IBM case is over, the IBM-vs-SCO case can get underway. That's the one I want to watch.
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Re:It's a nice gesture... (Score:4, Interesting)
More likely case, though similarly unfounded: Novel has their own case with SCO regarding their UNIX contracts, and much like IBM had to go through a lengthy process before they felt their case was strong enough to order summary dismissal of many of SCO's claims, so too Novel had to build a case so that when they present this motion before the judge, they feel it is likely to be accepted. If they do in fact have the contractual right to order SCO to stop litigating IBM, then they probably want to assert their authority and use it, rather than appear as though they are allowing SCO to continue.
But you're right, it isn't obvious to me (IASNAFL*) that this is what IBM wants. If they wanted a quick end to the case, they could have settled (with an obviously bad precedent). They seem very intent to crush SCO in their steely grasp and let the sand-like remains run between their fingers to be blown away by the wind.
* S = So, F = Fornicating
Re:It's a nice gesture... (Score:4, Informative)
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I am not so sure that it is all that unfounded. Let's look at the real players here, IBM and M$. (Novell and SCO are bit players.) Remember that M$ screwed IBM into the ground with the OS2 stuff. IBM lost a lot of money - and in fact lost a whole business. I do not think that IBM has forgotten - hence their support for Lunix. My guess is that having IBM push Lunix scares the @#@$ out of M$. Now M$ is looking at the potential for their SCO gambit to fail - and fail in such
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Yet another reason everyone should be migrating to Unicode. Characters U+534D and U+5350 are swastikas. Why they're in the CJK Unified Ideograph section isn't too obvious, but they're there.
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It's because it's an ancient symbol in the east. You'll see it all over the place in the Tibet etc. The Nazis just appropriated a much older symbol.
But it wouldn't work like that (Score:2)
Unfortunately (for Microsoft),
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Good point. It is possible though that as soon as SCO vs IBM is settled, SCO will implode due to not having any revenue that isn't Linux-FUD-lawsuit related. But really, I don't believe the conspiracy theory. I do think it's much more likely that Novell wants to assert their rights.
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IBM has already spent quite a bit defending themselves from this BS over three years. They have counterclaims that may allow them to recover expense, but if it goes on too long SCO's net worth (after they are utterly crushed) might not be enough. Keep in mind a big chunk of SCO's gross revenue might be owed to Novell up-front.
Re:It's a nice gesture... (Score:5, Informative)
IBM doesn't go to trial in a few months. Judge Kimball has just postponed the trial date. Hearings on the summary judgment motions will be in March. Rulings on them probably a few months after that. Actual trial, if ever needed, maybe 2008. Part of the reason for that schedule is because Judge Kimball ruled that the Novell trial should proceed first. It's worth noting that when he asked the lawyers for IBM and SCO, IBM's lawyers argued that Novell should go first.
So that's one reason for 'why now' - because it's recently been held that the Novell case proceeds ahead of the IBM case.
Another reason? Because of the recent rulings limiting SCO's list of infringing materials in the IBM case to that which they disclosed by the deadline. So that's 300 odd lines of code potentially subject to copyright infringement. When there were still wild claims of millions of lines SCO might have had better luck arguing that the contract terms just COULDN'T have been meant to allow Novell to waive such a massive breach. Now that argument just looks silly.
Last reason I can think of off hand, as noted IBM's motions for PSJ have their hearings scheduled for March. Ideally, Judge Kimball will rule at that point that there is no copyright infringement, and not just because of the Novell waiver but because there was no breach needing to be waived. If he doesn't feel that he can rule that then all the arguments from all parties are on the table to rule on the waiver instead as a second best option (from the viewpoint of Linux supporters).
There are a lot of pieces falling into place right now.
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Novell isn't filing a lawsuit; they are simply filing a motion for summary judgment. It would be a fairly irrational thing to let a case drag out in open court as legal fees continue to pile up during a trial. According to Wikipedia [wikipedia.org]:
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Novell waived SCO's "breach" of contract concerning IBM ages ago. They've also been sued by SCO for a long time now (originally for "slander of title" but I believe that's changed a few times).
In other words, this is just the latest motion of something that's been brewing for a long time now--it's not something Novell just came up with yesterday.
Summary Judgement, not Lawsuit (Score:2, Interesting)
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In a word....Yes! (See below)...
"You'd think that Novell could have filed this lawsuit a year or three ago instead of waiting till right before SCO vs IBM goes to trial (in a few months)."
You'd think....
"Why try to kill the lawsuit at this point?
It's already imploding under the weight of SCO's garbage."
It doesn't kill the IBM lawsuit only the SCO claims. The more you can chisel the claims down, the better. IBM still has the counter-claims. Even if the judge grants
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Bye bye SCOX (Score:5, Informative)
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The judge should have some guts (Score:3, Interesting)
Vanity? (Score:2)
Judges are human beings and subject to all the vices of the rest of us - could it be the kudos of fronting such a trial would outweigh more logical considerations about the wisdom of allowing the case to continue?
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Some times you do a Hit quietly
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Well said. This point has been discussed before and just that conclusion reached.
The primary reason that the case has not been thrown out is to obviate any chance of SCO calling for a retrial or of an appeal.
Just following the case in the press, on Groklaw and here have shown that Kimball and Wells have been scrupulously fair (over-fair in some peoples eyes) in allowing SCO as much leeway as possible to avoid those eventualities.
The fact that SCO seem to have managed to dig themselves an ever deeper hole
Anyone wearing their tinfoil hats this morning? (Score:4, Interesting)
By funding this charade via SCO, they bought themselves time.
Linux had been gaining server market share, and they knew their new product was going to be severely delayed
I'm not usually in the tinfoil fedora (pun somewhat intended)camp but this thought came to mind this morning.
- Roach
This might be true... (Score:3, Interesting)
M$ is now getting Vista out to businesses and to the public in a couple of months.
M$ now has a deal with Novell, and with Novell now showing strength in this ongoing matter with SCO, it is only helping M$.
Novell now will fight with SCO in court while M$ works on its next OS which will work with Linux.
My thought is maybe M$ wants to find a way to get Linux software to run natively in the windows environment allowing M$ to say, 'Look, we can run Window and Linux software at the same time with ju
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You make that statement as though Novell has only a single department and can only deal with one issue at a time. I don't know about you, but I've seen tremendous improvements in SuSE since the 9.0 release (aside from 9.2 which was to SuSE 9.1 as Windows 3.11 was to Windows 3.1), more so since 9.3, and they have been doing this WHILE getting all their ducks in a row where slaughtering (new)SCO is concerned.
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And the recent Micro$oft and Novell agreement makes me wonder if we even know all of what is going on. What is Micro$oft up to next? But I didn't think much of Micro$oft owning part of SCO whey back when either, but now it is apparent.
But will not catch me buying NOVL any time soon, partnerships with Micro$oft rarely do well when all is counted.
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A love how pure speculation is now piled on top of the previous pure speculation. Look, I can do it too:
I wonder if it was RMS's plan all along for Novell to lose this case so that IBM could win it's case so Novell would be tempted to make a deal with MS, so Linus would adopt GPLv3 so MS would have to
Oh, very clever! (Score:1, Insightful)
There's enough conspiracy theory to go around, by the way. Just grab a chunk and go make your own post. This one's mine...
Re:Oh, very clever! (Score:4, Interesting)
Novell's waiver [novell.com] was over 3 years ago and has been public knowledge for most of that time. All that's happening now is that Novell are asking for a judgment declaring that their waiver is valid. IBM's motions for partial summary judgment on the copyright issue are all ready on the table. Chance are the judge will find that the 300 odd non-contiguous lines of allegedly infringing code don't amount to infringement of a protectable element anyway even IF they turn out to have been copied verbatim from SysV (very unlikely) and even if SCO is eventually ruled to own SysV (very unlikely). This is at most a back up motion in case the judge isn't convinced by everything else.
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What will happen and why didn't it already happen? (Score:1, Insightful)
Judge K can decide this one without going to a jury because it can be settled as a matter of law. All he has to do is read and interpret the contract. The contract is pretty unambiguous so my guess is that Judge K will grant it.
What effect will this have? Novell told SCO that it couldn't cancel IBM's license. Judge K's decision may be limited to just that matter. This probably w
Re:What will happen and why didn't it already happ (Score:2, Informative)
You're confusing SCO v IBM with SCO v Novell. Discovery is ongoing in the Novell case. In fact there's a motion [groklaw.net] by Novell to compel discovery from SCO coming up for hearing soon. Agree with everything else you say though, and yes this is just one more motion in an ongoing case. It's not like Novell have been sitting on their hands until now as some people seem to think.
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(Just hoping you didn't get that from a Word of the Day or similar
Re:What will happen and why didn't it already happ (Score:2)
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I don't know what kind of deals there are between IBM and Microsoft, but I know IBM is still smarting from the stab in the back it got from Microsoft back in the
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Where are the pundits? (Score:4, Insightful)
Merry X-Mas! (Score:4, Funny)